United States District Court, D. New Mexico
PROPOSED FINDINGS AND RECOMMENDED
R. SWEAZEA UNITED STATES MAGISTRATE JUDGE.
Hopskin, an inmate confined at FCI Elkton in Ohio, seeks
review under 28 U.S.C. § 2255 of a judgment revoking his
supervised release related to a 1999 drug conviction. (Doc.
Given the age of the underlying conviction, Hopskin asserts
his attorney was ineffective for (1) not raising a
jurisdictional challenge; and (2) failing to file an appeal
as Hopskin directed. Pursuant to an order of reference,
see 28 U.S.C. § 636; (Doc. 65), the Court has
considered the parties' submissions and the record.
Having done so, the Court RECOMMENDS that
Hopskin's motion be denied as to the first allegation of
ineffective assistance, Hopskin be appointed counsel, and an
evidentiary hearing be held as to the second basis for
October 18, 1999, Hopskin pleaded guilty in this Court to a
single-count indictment charging him with possession with the
intent to distribute 500 grams of cocaine. See 21
U.S.C. § 841(b)(1)(B); (Docs. 30 &31). He
subsequently was sentenced to thirty months in federal prison
and a four-year term of supervised release “upon
release from imprisonment.” (Doc. 38). Hopskin
commenced his sentence on March 13, 2000 and in May of that
year was transferred to FCI Milan. (Doc. 61).
serving this sentence, Hopskin was extradited to Kent County,
Michigan to answer for a second-degree murder charge.
(Id.). He pleaded guilty and was sentenced in August
2001 to an indeterminate term of incarceration between twelve
and thirty-seven years. (Id.). Hopskin says that he
received discharge notice from the Federal Bureau of Prisons
during his time at the Kent County jail. In September 2001,
Hopskin began his sentence on the state conviction.
(Id.). On December 5, 2012, Hopskin was released on
October 7, 2015, Hopskin was arrested on federal drug charges
in the Western District of Michigan. On July 26, 2016, as a
result of the new charges, the United States Probation Office
in this District petitioned to revoke Hopskin's
supervised release related to his 1999 conviction. (Doc. 44).
The petition alleged that, upon his release from imprisonment
on December 5, 2012, Hopskin “failed to report to a
United States Probation Office for supervision as
directed” and, independently, had committed
“another federal, state, or local crime.”
(Id.). Hopskin was arrested on October 25, 2016.
his arrest and transport to this District, Hopskin pleaded
guilty in the Western District of Michigan to possessing
cocaine with the intent to distribute. (Doc. 61). He was
sentenced to 144 months' imprisonment. (Id.).
Once in New Mexico before this Court, Hopskin admitted
violating the terms of his supervised release as stated in
the petition. (Doc. 71-1). The Court revoked Hopskin's
supervised release and sentenced him to twelve month's
incarceration, six months of which will run consecutively to
his 144-month sentence in the Western District of Michigan.
(Doc. 58). Hopskin filed the instant motion for relief under
Section 2255 on December 21, 2017. (Doc. 61).
2255 permits a federal inmate to “move the court which
imposed the sentence to vacate, set aside or correct the
sentence” on “the ground that the sentence was
imposed in violation of the Constitution and laws of the
United States[.]” 28 U.S.C. § 2255(a). If the
inmate shows “the sentence imposed was not authorized
by law or is otherwise open to collateral attack, or that
there has been such a denial or infringement of the
constitutional rights of the prisoner as to render the
judgment vulnerable to collateral attack, ” the Court
shall “discharge the prisoner or resentence him or
grant a new trial or correct the sentence as may appear
appropriate.” Id., § 2255(b). In
reviewing a Section 2255 motion, the Court presumes that the
prior proceedings were lawful. See Klein v. United
States, 880 F.2d 250, 253 (10th Cir. 1989). The movant
bears the burden of demonstrating the deprivation of a
constitutional right. See United States v. Kennedy,
225 F.3d 1187, 1197 n.6 (10th Cir. 2000).
argues his attorney provided constitutionally deficient
assistance because counsel failed to: (1) lodge a
jurisdictional challenge given that his 1999 sentence had
expired; and (2) appeal the revocation of his supervised
release. To prevail, Hopskin must carry the twin burden of
establishing that (1) “counsel made errors so serious
that counsel was not functioning as the ‘counsel'
guaranteed the defendant by the Sixth Amendment” and
(2) “the deficient performance prejudiced the
defense.” Strickland v. Washington, 466 U.S.
668, 687 (1984). “Prejudice” in this context
requires Hopskin to “show that there is a reasonable
probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been
different.” Id. at 694. The Court must presume
“[s]trategic or tactical decisions on the part of
counsel are . . . correct, unless they were completely
unreasonable, not merely wrong, so that they bear no
relationship to a possible defense strategy.” Moore
v. Marr, 254 F.3d 1235, 1239 (10th Cir. 2001) (quotation
and citation omitted). While Hopskin's first contention
lacks merits, his second requires and evidentiary hearing to
resolve a fact question.
to Lodge Jurisdictional Challenge
lawyer is not ineffective under Strickland for
failing to advance a meritless argument. Sperry v.
McKune, 445 F.3d 1268, 1275 (10th Cir. 2006) (holding
that counsel was not ineffective for failing to assert a
meritless argument at trial). Here, Hopskin's
jurisdictional theory amounts to just that. Under federal
law, a sentencing court retains jurisdiction to revoke a term
of supervised release and to order the defendant to serve a
term of imprisonment “for any period reasonably
necessary for the adjudication of matters arising before
[the] expiration [of the term of supervised release] if,
before its expiration, a warrant or summons has been issued
on the basis of an allegation of such a violation.” 18
U.S.C. § 3583(h), (i). A term of supervised release,
“commences on the day the [prisoner] is released from
imprisonment, ” but, as is relevant here, “does
not run during any period in which the person is imprisoned
in connection with a conviction for a . . . State . .
.crime[.]” 18 U.S.C. § 3624(e).
Hopskin acknowledges he was continually imprisoned on a
either a federal or state conviction from March 2000 until
December 5, 2012. (Doc. 61). As a result, Hopskin's
supervised release did not commence until December 5, 2012.
At that point, authorities had until December 5, 2016 to
obtain a warrant or summons to revoke his supervised release.
See 18 U.S.C. §§ 3583; 3624(e). This Court
issued a warrant as requested by the USPO on August 15, 2016,
before Hopskin's sentence expired. (Doc. 46).
Consequently, the Court had jurisdiction to revoke